Transcript

The human rights lawyer for a group of 12 asylum seekers on Nauru says he in concerned the detainees will self-harm after losing their bid to have their detention ruled unconstitutional.

The Supreme Court of Nauru ruled on Tuesday that the asylum seekers can be detained despite the constitution's protection for liberty, due to an exception for the purposes of legal removal to another country.

Australian barrister Julian Burnside QC says the great majority of detainees are genuine and end up being granted asylum, and the indefinite wait is needless and harmful.

He spoke to Alex Perrottet.

JULIAN BURNSIDE: The constitution of Nauru has a guarantee of personal freedom and says that no person can be deprived of their personal liberty, except pursuant to a law in various circumstances, and one is for the removal of the person from Nauru. Now, the judge decided that they are detained, in fact, notwithstanding that they can be taken out on excursions from time to time. But they are detained for the purpose of removal because - win, lose or draw - they're not going to be settled in Nauru. What is happening at the moment is their refugee claims are being processed very slowly. The evidence suggests that their claims would be processed within the next 3 months, so roughly 12 months after they arrived there. The judgement suggests if a person in Nauru is assessed as a refugee and then Australia drags its heels for resettlement, then that would appear to be a circumstance where they're not being held for removal.

ALEX PERROTTET: So the judge did allow for a little bit of reconsideration of the case if they're detained for an extended period of time. But you're saying that's only the period of time after they are deemed a refugee. But what about the period of time before they're deemed a refugee or sent home?

JB: You're exactly right. And really what the judgement means, as I read it, is whilst their refugee status is still being determined then they can be said to be held for the purpose of removal. Once their refugee status is determined then after a time - not specified - holding them any longer is not holding them for removal.

AP: Can you tell us about their reaction to the decision of the case?

JB: Well, of course they're disappointed. They're disappointed because, from their perspective, here's what's happened - they have undergone a very dangerous trip and they found themselves in a place which they understand offers safety and protection to people who are assessed as refugees. Then, against their will, they're forcibly transferred to another country, which has locked them up despite its constitutional guarantee of personal liberty, and they're locked up there for an indefinite time. And when you accept that over the last 15 years or so more than 90% of boat people getting to Australia have turned out to be genuine refugees, you can say with some confidence that most of the people being detained on Nauru are people who have suffered torture or trauma, people who've escaped persecution, people who've risked their lives to get to a place of safety. And now they're told, in effect, 'You've got virtually no hope'. Now, that's going to drive people crazy. That's why people start harming themselves.